Chester Water Auth, Aplt. v. Pa. DCED

[J-75A&B-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
CHESTER WATER AUTHORITY, : No. 44 EAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: 4/25/19 at No. 801 CD 2018 affirming
v. : the order of the Office of Open Records
: entered on 5/14/18 at No. AP 2018-
: 0194
PENNSYLVANIA DEPARTMENT OF :
COMMUNITY AND ECONOMIC :
DEVELOPMENT, :
:
Appellee : ARGUED: September 16, 2020
CHESTER WATER AUTHORITY, : No. 45 EAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: 4/25/19 at No. 1090 CD 2018 affirming
v. : the order of the Office of Open Records
: entered on 7/11/18 at No. AP 2018-
: 0247
PENNSYLVANIA DEPARTMENT OF :
COMMUNITY AND ECONOMIC :
DEVELOPMENT, :
:
Appellee : ARGUED: September 16, 2020
OPINION
JUSTICE SAYLOR DECIDED: April 29, 2021
In these consolidated appeals arising under the law generally requiring public
access to governmental records in Pennsylvania, the lead issue is whether a statutory
deliberative-process exception extends to records exchanged between a
Commonwealth agency and private consultants.
I. Background
For almost twenty-five years, the City of Chester has been designated as a
distressed municipality under the Financially Distressed Municipalities Act or “Act 47,”1
which is administered by the appellee, the Department of Community and Economic
Development (the “Department” or “DCED”). See 53 P.S. §11701.121. Per this
enactment, among the Department’s other responsibilities, the agency is tasked with
appointing coordinators, which may be DCED employees or a private consultants, to
formulate plans to address the financial problems of distressed municipalities. See id.
§11701.221(a), (b).
In 2016, DCED entered into a professional services contract with Econsult
Solutions, Inc., a private consulting firm, to act -- in the capacity of an independent
contractor -- as the recovery coordinator for the City of Chester. Econsult, in turn,
subcontracted with Fairmount Capital Advisors, Inc. and McNees, Wallace & Nurick,
LLC to serve as subcontractors, respectively providing professional financial and legal
services.2
1 Act of July 10, 1987, P.L. 246, No. 47 (as amended 53 Pa.C.S. §§11701.101-
11701.712).
2 In the present briefing, the Department intermittently refers to Econsult and the
Fairmount Capital firms as “agents for DCED.” See Brief for Appellee at 8. The
governing professional services contract, however, explicitly defines Econsult’s
relationship with the Department as being that of an independent contractor and
admonishes that “[n]othing contained herein shall be so construed as to create an . . .
agency . . . relationship[.]” Contract for Professional Services dated Feb. 23, 2016, No.
(continued…)
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Significantly, Act 47 recovery plans must address numerous factors potentially
useful in mitigating financial distress, including “[a]n analysis of whether . . . privatization
of existing municipal services is appropriate and feasible[.]” Id. §11701.241(8).
Accordingly, Econsult was obliged to assess the potential privatization of local municipal
authorities -- including Appellant, Chester Water Authority (the “Authority”) -- and
estimate the impact on the City’s financial health. It was (and is) the Authority’s
position, however, that a cash infusion from the sale of the water authority is not in the
best interests of the public, but rather, would benefit only those with an interest in an
appearance of a successful financial turnaround for the City in the short term. The
Authority therefore sought to remain abreast of the recovery planning.
In late 2017, the Authority submitted two lengthy requests to DCED under the
Right to Know Law,3 which generally requires Commonwealth agencies to provide
access to public records upon request. See 65 P.S. §67.301. The Authority requested
copies of documents reflecting communications among the Department, Econsult, and
the Fairmount Capital and McNees firms related to the potential sale of the water
authority.4 The Department made a partial tender but redacted and/or withheld a
substantial quantity of materials.
(…continued)
4000019873, art. IV (DCED). Since the Department offers no accounting, on this point,
for the contract that it otherwise recognizes as controlling, we reject the suggestion of
an agency relationship from the outset.
3 Act of Feb. 14, 2008, P.L. 6, No. 3 (as amended 65 P.S. §§67.101-67.3104) (the
“RTKL” or the “Law”).
4 The requests were tendered by Nolan Finnerty, who was a paralegal with a law firm
retained by the Authority. The Authority later requested, and was permitted by this
Court, to be substituted as the party-in-interest in the present litigation. For
convenience, references to submissions and actions by Mr. Finnerty before DCED, the
(continued…)
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As relevant here, DCED asserted that disclosure of the withheld materials was
not required under Section 708(b)(10)(i)(A) of the Law, which excepts from the general
requirement for disclosure of public records:
A record that reflects:
(A) The internal, predecisional deliberations of an agency,
its members, employees or officials or predecisional
deliberations between agency members, employees or
officials and members, employees or officials of another
agency . . ..
65 P.S. §67.708(b)(10)(i) (emphasis added).5 The Department explained that the
materials contained “internal staff and contractor recommendations, comments to
documents, draft proposals, and discussions that played a role in the Department’s Act
47 decision making process.”6 DCED also invoked the privilege applicable to lawyer-
(…continued)
Office of Open Records, and in the Commonwealth Court are attributed to the Authority
herein.
5 Justices Dougherty and Wecht highlight that the statute proceeds to encompass “any
research, memos or other documents used in the predecisional deliberations.” 65 P.S.
§67.708(b)(10)(i). As the Commonwealth Court made clear from the outset of its
analysis, however, “[h]ere, the parties dispute only the first element of the internal,
deliberation exception, whether the withheld records were “‘internal to the’
Department[.]” Finnerty v. DCED, 208 A.3d 178, 186 (Pa. Cmwlth. 2019) (emphasis
added). Significantly, the intermediate court quite appropriately limited its review
according to the arguments with which it was presented.
Accordingly, we leave it for another day -- when we would have the benefit of a
pertinent decision from the intermediate court and relevant advocacy -- whether (or to
what degree) the research-memos-documents rubric of Section 708(b)(10)(i)(A) might
serve as an exception to the statute’s specified focus on matters internal to the agency.
6Letter from Christopher C. Houston, Chief Counsel of the Governor’s Office of General
Counsel to Nolan Finnerty dated January 12, 2018, in RTKL-2017-184 (DCED), at 2;
Letter from Christopher C. Houston, Chief Counsel of the Governor’s Office of General
Counsel to Nolan Finnerty dated January 19, 2018, in RTKL-2017-183 (DCED), at 2.
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client communications and the attorney work-product doctrine. See 65 P.S. §67.102
(defining, in relevant part, “public record” and “privilege”).
The Authority proceeded to lodge an appeal with the Office of Open Records
(the “OOR”). See 65 P.S. §§67.1101-1102 (prescribing for appeals before the OOR
and consideration by an appeals officer). The appeals officer declined to conduct a
hearing but undertook in camera review of some documents supplied by the
Department. Final determinations ensued in which the appeals officer found, in relevant
part, that records that DCED had exchanged with Econsult and the Fairmount Capital
and McNees firms were internal to the agency, for purposes of the Section
708(b)(10)(i)(A) exception, on account of the contractual relationships among the
parties.7 Finnerty v. DCED, No. AP 2018-0194, slip op. at 10-11 (OOR May 14, 2018);
Finnerty v. DCED, No. AP 2018-0247, slip op. at 16-17 (OOR July 11, 2018).8
In this regard, the appeals officer’s reasoning paralleled the position of some
federal courts interpreting the federal Freedom of Information Act, 5 U.S.C. §552(“FOIA”). FOIA protects from disclosure “inter-agency or intra-agency memorandums
which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. §552(b)(5) (emphasis added). As the Supreme Court of the United
States has explained, some federal circuit courts of appeals have implemented a
7 The OOR’s approach in treating deliberations between agencies and consultants as
internal to the agencies apparently traces to Spatz v. City of Reading, No. 2010-0655,
slip op. (OOR Sep. 7, 2010).
8The appeals officer also determined that the redacted content was predecisional and
deliberative, for purposes of Section 708(b)(10)(i)(A), because it reflected “proposed
courses of action and budget-related recommendations concerning the next steps in the
City’s ongoing financial recovery process.” Finnerty, No. AP 2018-0194, slip op. at 13;
see also Finnerty, No. AP 2018-0247, slip op. at 20. This facet of the determinations is
not presently at issue.
[J-75A&B-2020] - 5
“functional approach” to the conception of intra-agency documents and adopted a
“consultant corollary,” extending the exemption to communications between government
agencies and outside consultants hired by them. Dep’t of Interior and Bureau of Indian
Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7-11, 121 S. Ct. 1060,
1065-67 (2001) (quoting 5 U.S.C. §552(b)(5)). These courts generally reason that, in
“eliciting candid and honest advice from outside consultants,” it is “crucial” that the
agency and the consultant can expect that their communications will remain
confidential. Nat’l Inst. of Military Justice v. DOJ, 512 F.3d 677, 685 (D.C. Cir. 2008);
see also id. at 683 (“[F]ederal agencies occasionally will encounter problems outside
their ken, and it clearly is preferable that they enlist the help of outside experts skilled at
unraveling their knotty complexities.”). Notably, to date, the Supreme Court of the
United States has declined to address the propriety of this consultant corollary in FOIA
jurisprudence. See Klamath, 532 U.S. at 12, 121 S. Ct. at 1067.
The appeals officer also found that an attorney-client relationship existed
between the Department and the McNees firm, and that DCED and Econsult were co-
clients of that firm. See Finnerty, No. AP 2018-0194, slip op. at 19; see also Finnerty,
No. AP 2018-0247, slip op. at 15. For these reasons, he concluded that a portion of the
withheld records were protected by the attorney-client privilege and the work-product
doctrine. See id.The Authority filed petitions for review in the Commonwealth Court. Just before
oral argument convened, the Department made an additional tender, asserting that it
was disclosing all documents that had initially been withheld on the basis of the
attorney-client and/or work-product privileges. DCED also sought a stipulation that as a
result of the production, the issues were moot, but the Authority did not agree.
[J-75A&B-2020] - 6
Upon its review, the Commonwealth Court affirmed. See Finnerty v. DCED, 208
A.3d 178 (Pa. Cmwlth. 2019); see also Finnerty v. DCED, 1090 C.D. 2018, slip op.,
2019 WL 1858392 (Pa. Cmwlth. Apr. 25, 2019). As concerns the statutory deliberative
process privilege, the intermediate court’s reasoning was consistent with the
functionalist approach and the consultant corollary prevailing in some federal courts.
While recognizing the legislative policy generally favoring openness and the
concomitant requirement for exceptions to be narrowly construed, see, e.g., PSP v.
Grove, 640 Pa. 1, 25, 161 A.3d 877, 892 (2017), the court nevertheless opined that:
[A]s it pertains particularly to the internal, predecisional
deliberation exception, [the statutory deliberative process]
exception “‘benefits the public and not the officials who
assert the privilege’” by recognizing “‘that if governmental
agencies were forced to operate in a fishbowl, the frank
exchange of ideas and opinions would cease and the quality
of administrative decisions would consequently suffer.’”
Finnerty, 208 A.3d at 187 (quoting McGowan v. DEP, 103 A.3d 374, 381 (Pa. Cmwlth.
2014) (quoting, in turn, Joe v. Prison Health Servs., Inc., 782 A.2d 24, 33 (Pa. Cmwlth.
2001))).
As such, the Commonwealth Court reasoned, “it serves, rather than hinders, the
RTKL to interpret ‘internal to the agency’ as including the predecisional, deliberative
information that was exchanged between the Department and EConsult, McNees, and
Fairmount.” Id. The intermediate court found this treatment to be particularly apt in the
Act 47 setting, in which the Legislature contemplated that DCED might require
assistance from consultants to address the many complex problems facing distressed
municipalities. See id. at 187-88. And, like the federal courts applying the consultant
corollary, the court stressed the desirability of a frank exchange of ideas and opinions
between the agency and its consultants. See id. at 188; see also id. at 185 (“[I]t would
serve no compelling public interest and undermine the purpose of the internal,
[J-75A&B-2020] - 7
predecisional deliberation exception to require disclosure of records shared between an
agency, a contractor, and an essential subcontractor.”).9
As to the attorney-client and work-product privileges, the Commonwealth Court
indicated that, at oral argument, the Authority had agreed that the records withheld as
privileged under the attorney-client and work-product privileges had been disclosed.
See id. at 180. Accordingly, the intermediate court deemed the relevant challenge to be
moot. See id. Summarily, the court also pronounced that “none of the exceptions to the
mootness doctrine apply.” Id.
II. The Consultant Corollary
Presently, the Authority argues that, in construing Section 708(b)(10)(i)(A), the
Commonwealth Court failed to accord primacy to the plain meaning of the word
“internal.” See, e.g., Reply Brief for Appellant at 1 (“Internal means internal. It does not
mean external to the agency, pursuant to a contract with the agency, or hired by agency
contractors or consultants.” (emphasis in original)); Brief for Amicus The Pittsburgh
Post-Gazette at 3-4 (“Internal cannot mean both inside and outside the organization.”).
It is the Authority’s position that a functionalist approach and the attendant consultant
corollary are unsupportable upon a plain-meaning interpretation of the statute.
To the degree that the statute suffers from any ambiguity, the Authority contends
that the Commonwealth Court afforded insufficient weight to the RTKL’s policy of
openness and transparency. Accord id. at 3-4 (“[T]he goal of the [Law] is transparency
and that goal would be furthered by allowing the public to observe the influence of third
parties when agencies make controversial decisions.”). The Authority also observes
9The Commonwealth Court also highlighted that its assessment was consistent with the
OOR’s interpretation, which it is authorized to consult in discerning the legislative intent.
See Finnerty, 208 A.3d at 188 (citing, inter alia, 1 Pa.C.S. §1921(c)).
[J-75A&B-2020] - 8
that the Commonwealth Court and the Department have failed to recognize the
emerging split among federal circuit courts of appeals concerning the appropriateness
of the consultant corollary, with a developing line of decisions rejecting the approach as
being counter-textual. See, e.g., Rojas v. FAA, 927 F.3d 1046, 1058 (9th Cir. 2019),
reh’g en banc granted, 948 F.3d 952 (9th Cir. 2020); Lujac v. FBI, 852 F.3d 541, 548-49
(6th Cir. 2017).
The Department, on the other hand, embraces the Commonwealth Court’s
treatment, stressing its belief that the consultant corollary promotes efficient
governmental administration and is essential to candid communications between
agencies and consultants.10 Indeed, according to the agency, rejection of this corollary
would be absurd and unreasonable, particularly because it would “create a burdensome
distinction between Act 47 coordinators which are employees of DCED and those
coordinators which are consultants or consulting firms.” Brief for Appellee at 22-23
(citing 53 P.S. §11701.221(b)).11
10 See Brief for Appellee at 2 (“Forcing an agency to release records which reflect
internal, predecisional deliberations between an agency and a third-party contractor will
inevitably have a chilling effect on the free and candid exchange of ideas, and, in this
case, the quality of administrative decision-making of those parties assisting a
financially distressed municipality facing economic failure will suffer.”); accord Brief for
Amicus Pa. State Ass’n of Twp. Supervisors & Cnty. Commr’s Ass’n of Pa. at 2 (positing
that the OOR and the Commonwealth Court’s construction of Section
67.708(b)(10)(i)(A) “permits agencies to collect information necessary to make
decisions without the risk that disclosure of that information at the preliminary,
predecisional stage will injure the financial or other interests of the agencies and, by
extension, their residents and taxpayers”).
11 At times, the Department does not confine its argument to “consultants”, but urges
that communications and records shared between a Commonwealth agency and a
“third-party contractor must remain ‘internal to the agency.’” Brief for Appellee at 3. In
other passages of its brief, the agency hones in upon Act 47 consultants, thus
suggesting that there may be something unique about them -- as contrasted with other
(continued…)
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There is no dispute that the materials for which the Department has invoked the
statutory privilege in issue are public records of an agency as defined in the RTKL and
thus subject to public disclosure unless the exception applies. See generally 65 P.S.
§67.701 (“Unless otherwise provided by law, a public record . . . shall be accessible for
inspection and duplication in accordance with this act.”). Both parties also apprehend
that, consistent with the Law's goal of promoting government transparency and its
remedial nature, see SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 662, 45 A.3d
1029, 1042 (2012) (explaining that the objective of the RTKL is to empower citizens by
affording them access to information concerning the activities of their government),
exceptions to the requirement for disclosure of public records are to be narrowly
construed. See Grove, 640 Pa. at 25, 161 A.3d at 892.
As the Authority stresses, Section 708(b)(10)(i)(A) prohibits disclosure of
“internal, predecisional deliberations of an agency, its members, employees or officials,”
as well as deliberations between such individuals and another agency. 65 P.S.
§67.708(b)(10)(i)(A) (emphasis added). As a third-party contractor and subcontractors,
(…continued)
consultants -- justifying application of what could be termed an “Act 47 consultant
corollary.” See, e.g., id. at 18-19, 22.
While the consultant corollary is supported by a colorable policy-based rationale, a
broader “third-party contractor corollary” is both non-textual and lacks any similarly
focused justification. We also believe that, had the General Assembly intended
uniquely for communications between agencies and Act 47 recovery coordinators -- but
not other consultants -- to be excepted from the general requirement for disclosure
under the RTKL, it would have said so.
Accordingly, our remaining analysis is of the viability of a generalized consultant
corollary under the Law.
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Econsult and the Fairmount Capital and McNees firms plainly are not agencies, 12
members, employees or officials.13 Accord Rojas, 927 F.3d at 1055 (“A third-party
consultant . . . is not an agency” and “’neither the terms of the exemption nor the
statutory definitions say anything about communications with outsiders.’” (quoting
Klamath, 532 U.S. at 9, 121 S. Ct. at 1060)). See generally John C. Brinkerhoff
Jr., FOIA's Common Law, 36 YALE J. ON REG. 575, 582–84 (2019) (criticizing that
consultant corollary on the basis that “[i]t is doubtful that any reasonable reading of
‘inter-agency or intra-agency’ could encompass third parties”). And “internal,” relative to
organized structures, commonly means “of, relating to, or occurring on the inside” -- or,
in other words, within -- the organization. MERRIAM-W EBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/internal (last visited Apr. 27, 2020).
Accordingly, the statutory provision facially does not apply to communications
with outside consultants. See generally N. Hills News Record v. Town of McCandless,
555 Pa. 51, 58, 722 A.2d 1037, 1040 (1999) (explaining that, where the provisions of a
statute are clear, courts “are forbidden from diverging from the plain meaning under the
mere pretext of pursuing the spirit of the enactment.”). And the requirement of narrow
construction further solidifies the interpretation that private consultants providing
services as independent contractors do not qualify as agencies, members, employees,
or officials who may engage in protected internal communications.
12 The RTKL defines “agency” to mean four agencies (Commonwealth, Local,
Legislative, and Judicial), all of which have specific definitions centered on
governmental status. See 65 P.S. §67.102. None of the definitions include outsiders.
13The words “members, employees or officials” are all undefined in the Law, and thus,
we take them according to their common meaning. See Grove, 640 Pa. 1 at 25, 161
A.3d at 892 (citing 1 Pa.C.S. §1903(a)).
[J-75A&B-2020] - 11
To the degree that a further policy assessment would be relevant, we agree with
the Authority and its amicus that a balancing of the aim to promote the free exchange of
deliberative communications against the Law’s overarching policy of openness is
required.14 It is the General Assembly’s prerogative, however, to conduct the necessary
balancing. See generally Schock v. City of Lebanon, ___ Pa. ___, ___, 210 A.3d 945,
961 (2019) (recognizing the role of the Legislature as the policy-making branch). And
the balance that the Assembly has presently stricken protects only deliberations that are
internal to an agency and its members, employees or officials, or represent deliberative
inter-agency communications. Accord Lucaj, 852 F.3d at 549 (recognizing the benefits
of a policy that protects frank discussions but emphasizing that, “in the end, Congress
chose to limit the exemption’s reach [only] to ‘inter-agency or intra-agency
memorandums or letters’” (quoting 5 U.S.C. §552(b)(5))). See generally Brinkerhoff, 36
YALE J. ON REG. at 583 (“The government’s ‘special need[s]’ [relative to consultations
with outsiders] have nothing to do with whether a memorandum is ‘inter-agency or intra-
agency.’” (quoting Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971))).
Significantly, the Legislature knows how to protect agency communications with
outsiders; indeed, it has done so in other provisions of the Law. See, e.g., 65 P.S.
§708(b)(26) (excepting from disclosure, inter alia, pre-acceptance procurement
proposals and bidder financial information). And it would have been a straightforward
14 In our judgment, the Department unduly downplays the interest of the citizenry in
access to the work product of private consultants retained by the government, in light of
the public character of the funds used for their remuneration. It is not an exaggeration
to say that some members of the general public would regard consulting contracts of
the character of those in issue as being potentially “lucrative” ones. Brief for Appellant
at 8. Since “the protection of the public fisc is a matter that is of interest to every
citizen,” Brock v. Pierce Cty., 476 U.S. 253, 262, 106 S. Ct. 1834, 1840 (1986), “there is
an obvious legitimate public interest in how taxpayers' money is being spent, particularly
when the amount is large.” United States v. Suarez, 880 F.2d 626, 630 (2d Cir. 1989)).
[J-75A&B-2020] - 12
matter, in Section 708(b)(10)(i)(A), to have listed outside consultants along with
“members, employees or officials,” but the fact of the matter is that the General
Assembly did not do so. In light of the strong, competing policy interests involved, we
rest our decision upon the statutory language and leave consideration of any
adjustments to the open-records regime to the policy-making branch. Accord Rojas,
927 F.3d at 1058 (explaining that, if adherence to the statutory scheme as written
proves unworkable, “the proper remedy lies with Congress, not the courts”).
We hold that Section 708(b)(10)(i)(A) does not serve to insulate communications
exchanged between a Commonwealth agency and a private consultant from the Law’s
general requirement for openess.
III. The Attorney-Client and Work-Product Privileges
The Authority next argues that, based on an “unverified and unsolicited eleventh-
hour production on the eve of argument, the Commonwealth summarily and without
analysis dismissed the issues [that the Authority] raised under the attorney client
privilege and work product doctrine.” Brief for Appellant at 28. The Commonwealth
Court explained, however, that the Authority’s counsel agreed, at oral argument, that
the records withheld as privileged attorney-client communications and under the work-
product doctrine had been produced. See Finnerty, 208 A.3d at 180. Presently, the
Authority fails to acknowledge the asserted concession in its brief, much less contest
the Commonwealth Court’s account of it. As such, we have no basis for doubting the
intermediate court’s position that the matter is settled and, accordingly, the controversy
has been mooted.
Invoking the exceptions to the mootness doctrine, the Authority further contends
that the attorney-client-privilege and work-product-doctrine issues should be decided
under the exception to the mootness doctrine for matters that are capable of repetition
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yet evading review. See DEP v. Cromwell Twp., Huntingdon Cty., 613 Pa. 1, 21, 32
A.3d 639, 652 (2011). According to the Authority,
[i]f the Commonwealth Court’s brief decision on this issue is
permitted to stand, there would be nothing to preclude the
Department from taking this path each and every time;
withholding documents under sham claims of privilege and
then, when it looks as if its unreasonable stance may be
subject to scrutiny, producing something to evade a decision
on the merits.
Brief for Appellant at 29; accord id. at 30 (“Allowing these issues to be considered moot
on this set of facts and with no analysis from the court leaves the Department
emboldened and empowered to continue to engage in such dilatory and improper
tactics.”). Indeed, the Authority claims that it is likely that additional, and purportedly
unsupportable, claims of privilege will be lodged in the continuing disputes over public
disclosure related to the evaluation of potential privatization of the water authority that
was or is underway. See id. at 31.
Initially, the Authority does not identify the applicable standard of review
pertaining to the Commonwealth Court’s determination that none of the exceptions to
the mootness doctrine apply. While this Court has indicated that the issue of mootness
is a pure question of law subject to de novo review, Commonwealth v. Dixon, 589 Pa.
28, 35, 907 A.2d 468, 472 (2006), it has also emphasized the discretionary nature of the
decision whether to invoke an exception to the mootness doctrine and found that an
abuse of discretion standard applied to judicial review of a quasi-judicial determination
of mootness. See Ass'n of Pa. State Coll. & Univ. Faculties v. PLRB, 607 Pa. 461, 470-
72, 8 A.3d 300, 305-07 (2010). Facially, the same rationale would seem to apply to
judicial assessment of the mootness exceptions on appellate review. Absent developed
advocacy on the subject, however, we decline to definitively resolve whether a de novo
or abuse of discretion standard should apply in the present context.
[J-75A&B-2020] - 14
Responding to the Authority’s contentions, as was the case in Association of
Pennsylvania State College & University Faculties, we are confident that the judicial
system can identify and police serial, unjustified evasions by a Commonwealth agency.
See id. at 473, 8 A.3d at 307. Accordingly, we decline to disturb the Commonwealth
Court’s ruling on the exception to the mootness doctrine for matters that are capable of
repetition yet evading review based on the speculative prediction of serial, unjustified
assertions of privilege followed by withdrawals.
Finally, the Authority contends that the issues in this case should be excepted
from the mootness doctrine because they are of great and immediate public importance.
See Cromwell Twp., Huntingdon Cty., 613 Pa. at 21, 32 A.3d at 652 (referencing the
public-importance exception). According to the Authority, every right-to-know request
implicates this exception. See Brief for Appellant at 31 (“Pennsylvania has held that the
duty of government officials to provide nonpublic information pursuant to a Right to
Know Act request involves a matter of great public importance” (citing Lewis v. Monroe
Cty., 737 A.2d 843, 848 (Pa. Cmwlth. 1999)). The argument continues,
This is especially true when the very existence of a public
municipality authority serving more than 200,000 residents
and businesses throughout Chester County, Delaware
County and the City of Chester safely and effectively is
threatened, and information relative thereto is intentionally
hidden at the direction and behest of our Commonwealth.
Brief for Appellant at 31.
We do not read the Commonwealth Court’s cryptic invocation of the mootness
exceptions in Lewis as establishing that the public-importance exception applies in
every Right-to-Know-Law controversy. Notably, the Lewis court intermixed the two
exceptions and pronounced, in a conclusory fashion, that the hybrid applied. See
Lewis, 737 A.2d at 848 (“[C]ourts will review such matters when the issue raised is one
[J-75A&B-2020] - 15
of important public interest, capable or repetition unless settled and apt to elude review.
We see this as such a case.” (citations omitted)).
But the general, prudential approach in Pennsylvania remains that courts do not
review moot questions, see, e.g., Cromwell Twp., Huntingdon Cty., 613 Pa. at 20, 32
A.3d at 651, and not every claim arising under the Right to Know Law crosses the high
threshold for exception. Additionally, in the absence of a continuing course of conduct
involving the repeated assertion and withdrawal of privilege claims by the Department --
which may be evaluated in its own right should it arise -- we decline to rest a decision to
depart from the general rule upon claims of malfeasance which are undeveloped as of
record.15
IV. Order
The order of the Commonwealth Court is reversed as concerns the application of
statutory deliberative-process privilege and affirmed as to the mootness of the attorney-
client privilege and work product doctrine issues.
Justices Todd, Donohue and Mundy join the opinion.
Justice Dougherty files a concurring opinion.
Justice Wecht files a dissenting opinion in which Chief Justice Baer joins.
15For example, the Authority hasn’t undertaken to demonstrate that any discrete record
that was withheld per the attorney-client privilege or work product doctrine and later
produced had been unlawfully withheld in the first instance. In this regard, there is no
bar to voluntary disclosure to resolve a controversy.
[J-75A&B-2020] - 16